Policy # 88.0 Archived Version: Family and Medical Leave

Recognizing the occurrence(s) of serious health conditions which involve either the University employee or a qualified family member, the University provides unpaid Family Medical leave of up to 12 weeks in a 12 month period.

Policy

1) Any employee who has been a University employee for 12 months and has worked at least 1,250 hours during the previous 12 month period may take up to 12 weeks of unpaid leave for a serious health condition involving the employee or a qualified family member during any 12 month period for any or all of the following reasons:

Because of the birth of a child of the employee and in order to care for that child;

Because of the placement of a child with the employee for adoption or foster care;

In order to care for a spouse, child, or parent of the employee who has a serious health condition; or

Because of a serious health condition that makes the employee unable to perform the functions of his/her job.

Note: The 12 month period begins on the first day of the approved FMLA leave.

2) Definitions

For purposes of this policy the following definitions shall apply:

“Parent”

The biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a child.

Note: “In loco parentis” means that the employee has the day-to-day responsibilities for the care and financial support of a child or persons who had such a responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

"Child"

A biological, adopted or foster son or daughter, a stepson or stepdaughter, a legal ward, or a son or daughter of a person standing in loco parentis, who is under 18 years of age or 18 years of age or older and incapable of self care because of a mental or physical disability (as defined by the American with Disabilities Act (ADA)).

"Spouse"

A husband or wife.

“Serious health condition”

An illness, injury, impairment or physical or mental condition that involves the following:

Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

A period of incapacity for more than three consecutive calendar days and follow-up treatment,

Treatment two or more times by a health care provider, or

Treatment by a health care provider on at least one occasion which results in a regiment of continuing treatment.

A period of incapacity due to pregnancy or for prenatal care.

A period of incapacity or treatment due to a chronic serious health condition, which:

Requires periodic visits for treatment by a health care provider,

Continues over an extended period of time, and

May cause episodic rather than continuing periods of incapacity.

A period of incapacity that is permanent or long-term due to a condition for which treatment may not be effective. Examples include: alzheimer’s, a severe stroke or terminal stages of a disease.

A period of absence to receive multiple treatments by a health care provider or by the provider of healthcare services under orders of or on referral by a health care provider, either for restorative surgery after an accident or injury, or for a condition that would likely result in a period of incapacity for more than three consecutive calendar days in the absence of medical intervention or treatment, such as cancer, severe arthritis or kidney disease.

“Health Care Provider”

A health care provider is defined as:

Doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the state in which the doctor practices,

A podiatrist,

A dentist,

A clinical psychologist,

An optometrist,

A chiropractor,

A nurse practitioner,

A nurse-midwife,

A Christian Scientist practitioner,

A clinical social worker, or

Other persons determined by the United States Secretary of Labor to be capable of providing health care services.

Note: The federal law places restrictions on specific purposes under which chiropractors and Christian Science practitioners may be health care providers; an employee shall check with an official of Human Resources for an intrepretation before relying that these persons are health care providers.

3) Leave taken for childbirth or placement may be taken intermittently or on a reduced schedule, with the approval of the department head. This leave may be taken only within 12 months of the date of birth or placement of the child.

Leave taken for childbirth on an intermittent or reduced schedule shall be taken after the presumed six-week recovery period.

A pregnant employee may take leave intermittently for prenatal examinations or her own condition, such as for periods of severe morning sickness.

4) Leave taken to care for a spouse, child or parent or for the serious health condition of the employee may be taken intermittently or on a reduced schedule when medically necessary.

5) For employees who hold a full-time equivalent (FTE) of 0.5 or greater but less than 1.0, leave entitlement under this policy is calculated on a pro rata basis. If an employee’s work schedule varies from week to week, the average weekly hours worked during the 12 weeks prior to the start of the leave under this policy will be used to calculate the employee’s normal work schedule.

Note: Granting an exempt employee (faculty and staff) Family and Medical Leave by the hour is not a violation of the employee's exempt status under the Fair Labor Standards Act.

Accrued balances of TDL and vacation leave, as applicable, shall be used prior to the employee being placed on FMLA without pay.

Worker's Compensation shall be designated as FMLA, as applicable, and shall run concurrently with FMLA.

7) In the case of childbirth or placement, the employee shall, when foreseeable, give the supervisor 30 days notice before the leave is to begin. If the birth or placement requires leave to begin in less than 30 days, the employee shall provide the supervisor with as much notice as possible.

Note: In cases where a husband and wife are employees and employed in the same department, they may be required to share, at the discretion of the department, the 12 week FMLA entitlement for purposes of childbirth and/or adoption/foster care.

8) When leave is taken for planned medical treatment, the employee shall

Make a reasonable effort to schedule the treatment so as not to disrupt the operations of the department;

Provide the department with no less than 30 days notice, before the date the leave is to begin; and/or

Provide as much notice as possible if the date of the treatment requires leave to begin in less than 30 days.

9) If an employee requests intermittent leave or leave on a reduced work schedule that is foreseeable based on planned medical treatment for the employee or family member, the department may require the employee to transfer temporarily to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee's regular position.

Process

The responsibility for approving FMLA is delegated jointly to the department head and the Human Resources Office of Employee Relations. The department head or designee shall be responsible for maintaining accurate records of FMLA leave in the University’s centralized resource information system.

3) It is the responsibility of the department head, or designee, to designate leave as FMLA and to notify the employee that the leave will count towards the employee’s 12 week entitlement. This notification shall be made within two working days of the employee’s request. The notification may be oral or written. If the notice is oral it shall be confirmed in writing no later than the following payday, unless the payday is less than one week, in which case the notice must be no later than the following payday.

4) If the department does not initially have enough information to make a determination as to whether the request qualifies as FMLA, the notice of this must be given to the employee within two working days of the time the department determines the request qualifies or does not qualify as FMLA.

5) If the department learns that a leave is for FMLA purposes after the leave has begun, the leave may be retroactively counted as FMLA as follows:

If the department did not learn a leave was a FMLA qualifying event until the employee returned to work, the department may retroactively, within two working days of the employee’s return to work, designate the leave as FMLA.

If the leave taken for a FMLA qualifying event has not been designated as such and the employee wishes to designate the leave as FMLA, the employee shall notify the department within two working days of the employee’s return to work, that the leave is FMLA qualifying.

A preliminary designation of FMLA may be made if the department knows the reason for the leave, but the information has not been confirmed or the department has requested additional clarification and the clarification has not been received. Upon receiving confirmation or clarification, the preliminary designation becomes final. If the additional information fails to confirm a FMLA qualifying event, the department shall withdraw the designation and provide written notice to the employee.

6) The department shall send the employee a written notice detailing specific expectations and obligations of the employee and explaining the consequences of failure to meet these obligations. The written notice shall include the following as appropriate:

The leave will be counted against the employee’s 12 week FMLA entitlement.

The requirement that the employee provide medical certification of a serious health condition.

The requirement that the employee’s accrued leaves will be applied as appropriate.

The requirement that the employee make any premium payments to the Human Resources Office of Benefits to maintain benefits, and consequences of failure to make payments.

Any requirement for the employee to provide a fitness for duty certification to return to work.

If the employee is a “key” employee, and potential consequences that restoration to an equivalent position may be denied.

The employee’s right to restoration to the same or equivalent position.

The employee’s potential liability to pay health insurance premiums which were paid by the University during the employee’s unpaid FMLA, if the employee fails to return to work after taking FMLA.

7) If a department head has reason to doubt the validity of the certification provided, they may require, at the expense of the department, that the employee obtain the opinion of a second health care provider, designated or approved by the department head (the department head may consult with the UK Medical Center Chief Medical Officer in designating a health care provider).

The second health care provider may not be an employee of the University.

If the second opinion differs from the first, the department head may require, at the department’s expense, a third medical opinion, jointly designated and approved by the employee and the department head.

In a case where a third opinion is sought, that opinion shall be considered final and binding for both the employee and department.

8) An employee taking FMLA shall be entitled, upon return from FMLA, to

Be restored by the department to the position they held when the leave commenced, or

Be restored to an equivalent position with equivalent benefits and pay.

Note: An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties and responsibilities which must entail substantially equivalent skill, effort, responsibility, and authority.

9) If an employee is unable to perform the essential functions of their position because of a physical or mental condition, the employee has no right to restoration to another University position; however, the University’s obligation to the employee shall then be determined by the ADA.

Note: A department head may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The position of an employee taking leave under this policy may be filled by a temporary employee only with the approval of a Human Resources Official and the unit administrator.

10) Upon recommendation of a dean or director, the President, the Provost or the appropriate Executive Vice President a decision may be made to deny restoration of employment to any employee who is in the highest paid 10% of all salaried employees, if the following circumstances exist:

The action is necessary to prevent substantial economic injury to the University.

The President, Provost or appropriate Executive Vice President notifies the employee of the University’s intent to deny restoration, and the reasons supporting the denial.

The employee elects not to return to employment with the University after receiving such notice.

11) During FMLA, the status of an employee’s benefits are as follows:

The University shall continue the employee’s health plan at the same level and conditions of coverage as if the employee had been in employment continuously for the duration of the leave.

The University shall continue to cover the cost of the employer’s credit portion toward the employee’s health insurance plan.

The University shall continue to cover the cost of the employee’s basic life insurance.

The University shall continue to cover the cost of the employee’s enrollment in the long term disability plan.

The employee shall make arrangements with the Human Resources Office of Employee Benefits to pay the cost of other benefits for which the employee would ordinarily be responsible during any period of paid or unpaid leave.

12) At the time an employee gives notice of intent not to return to work, the University’s obligation to provide any benefits stops.

13) The employee shall be obligated to repay the University any health insurance premium which the University paid for the employee, if the employee fails to return to work after FMLA. The employee is not obligated to repay the University any health insurance premium if the employee fails to return to work for the following reasons:

The continuation, recurrence or onset of a serious health condition; or

Other circumstances beyond the control of the employee.

14) If an employee fails to return to work after an approved FMLA, because of the continuation, recurrence or onset of a serious health condition, a department head may require supporting evidence as follows:

A certification issued by the health care provider indicating the employee is needed to care for another qualifying individual and is therefore unable to return to work.

A certification issued by the employee’s health care provider indicating the employee is unable to return to work.

15) When an employee is to return to work from FMLA, a department head may require presentation of a certificate that the employee is able to resume his/her regular job duties.

15) To leave the University in good standing, an employee who is due to return to work from a FMLA shall give the required notice.